A challenge: Re-imagining capacity

Here’s a challenge for you. Is it possible to re-imagine the way we ‘do’ capacity under the Mental Capacity Act 2005 (MCA)? In the years to come, as we confront the challenges posed by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), we will surely have to undertake this task as it casts doubt on many current practices under the MCA (amongst other legislation). One of the most fundamental challenges posed by the CRPD is whether or not imposing ‘substituted decisions’ on disability related grounds is ever permissible; it is this challenge that potentially sets the MCA on its head. I have to confess that I am deeply torn over this. I am not sure the MCA is as bad as some of the caricatures of it that I have read, particularly when one takes into account some of its more enlightened case law, but neither do I think it is as progressive – or indeed safe – as many of its users and supporters would claim. 

But here is the challenge: how else would you do it? A couple of weeks ago I was chatting about the CRPD at the Essex Autonomy Project event on Capacity Assessments: Ethical, Political and Metaphysical Issues. Frustratingly I couldn’t attend Peter Bartlett’s talk on the CRPD, but even before the second day the CRPD crackled in the air. It came up in Tom O’Shea’s talk on the Metaphysics of Mental Capacity (which was great - blog version of it here) and there were discussions over lunch. Chatting about it with people more closely involved in implementing the CRPD than I am I came to feel that one of the key problems with the debate so far is that it is still in such esoteric and abstract realms. There is still very little written about what implementing the CPRD would mean in practice, in detail, particularly in the context of the MCA. So this post is a appeal for an informal, imaginative, but grounded way to explore the 'paradigm shift' of the CRPD.

It strikes me, as I write up this section of my thesis, that the problems the MCA and the CRPD literature discuss are very different, the types of stories and issues they draw from are very different, and neither seem particularly receptive to the acknowledging the concerns posed on the other side. The MCA literature concerns itself with situations where carers and professionals feel moved to act, to intervene, to protect somebody from some harm which would result from choices they have made. The CRPD literature (rightly) poses the question – and what harm do those interventions themselves do? To give a concrete example, a substituted decision under the MCA may provide the means by which a person is removed from an abusive family home, but a substituted decision might also be the means by which they are confined to an institution, contributing to exclusion, other forms of coercion and control, and vulnerability to institutional abuse.  A substituted decision might be required because a person lacked the skills or knowledge to make that decision, but how far do substituted decisions themselves stymie or erode that skills or knowledge base?  The CRPD poses the question - what other possible collaborative methods to support and protect did you skip over when you used a (potentially quite coercive) substituted decision? Sometimes it is frankly much easier, much cheaper, much less risky to substituted decision-makers, to use the quick and dirty solution of coercion (and I mean all forms of coercion, not just physical), rather than working to build trust, to support, to develop a person’s own capabilities to self-protect. But at the same time, the problem the CRPD literature doesn’t (in my view) seem to confront is: what if you have exhausted support, what if a person don’t feel they need support, what then? As I will go on to discuss below, these are very, very real problems which much of the CRPD literature so far seems to brush away as “things might get a bit messy” or "everyone has the right to make mistakes". It can be difficult to acknowledge that sometimes it is not right to 'protect'.  But we can all think of cases that wouldn't just be a bit "messy", they'd potentially be deeply harrowing, and if we're going to embrace that possibility I think we need to be very open and very clear that this is what we're doing.

And so – this is my challenge. Take a published court case where the MCA, or the common law doctrine of best interests, was used in reaching a substituted decision, and re-imagine how that situation might go in some other regime, which takes into account the CRPD. Write a judgment, or a summary of a judgment, and email it to me (lvs202@exeter.ac.uk), and I’ll post it on the blog. You can do it anonymously. It doesn’t have to be long, and it doesn’t have to be in fancy legal language. It doesn’t have to have a happy ending – in fact, if you want to use your ‘alternative judgment’ as a means to highlight problems with the CRPD, or hard outcomes that we’ll have to swallow, then that is fine. If you want to use your alternative judgment to highlight the exciting possibilities offered by the CRPD, then that is also absolutely fine. But first some ground rules: 

1. There are many possible interpretations of the various provisions of the CRPD (I’ll discuss some of these below). Please state your interpretation of the CRPD clearly where you have relied upon it. If substituted judgments are never permitted, please define what you mean by a substituted judgment.  I have come to realise that one of the problems with the CRPD debate is that what I and others familiar with the MCA mean by a substituted judgment is often much broader than what others mean (see below my list of possible ‘substituted judgments’ under the MCA, and note that it includes most justifications for restraint, so if you want to invoke ‘duty of care’ or ‘necessity’ to permit, e.g., restraint, be very very clear about when this is permissible). 
2. You can abolish, or tinker with, the MCA if you want to. For example, you might want to keep the MCA but dispose of the diagnostic criterion; to introduce a threshold for interventions which go against a person's expressed wishes adn preferences; to alter the weighting of best interests procedure; to introduce harder positive obligations for support provision; better procedural safeguards etc.  Please make any amendments or alternatives clear.
3. Please try to stick as closely as you can to the facts of the judgment you have chosen to re-write. If you need to draw upon further facts, please bear in mind that many Court of Protection judgments carry a prohibition on publishing material about a case that is not cleared by the judge, so if you know the case try not to land yourself (or me!) in contempt of court. You are, of course, welcome to create fictional facts where necessary, but please make it clear where you have done this. 
4. You have a magic wand, with which you can conjure up any resources or services which you think the CRPD requires be made available. We’ll worry about austerity another time. If you are going to conjure up resources for support, though, please specify what form they will take (e.g. if you are giving directions for advocacy, please specify what kind – e.g. ‘best interests’ advocacy, peer advocacy, citizen advocacy, etc). Given that the CRPD advocates provision of support for decision making, please also take care not to assume support will always be accepted, and to specify what you would do in the event of support refusal. 
5. Feel free to offer reflections on how easy or hard you found the task. If you felt that the CRPD offered you a much better way forwards, say how and why. If not, please spell out what you felt the problem was.
6. If you want to break out from the judgment format, that’s fine too. Perhaps you’re a social worker, carer, service user or a doctor and you want to talk about how the kinds of situations you have experience of could be handled differently given the CRPD.  Perhaps there’s something you’d love to be able to do, or not to have to do, or not to have done to you. Please do consider your professional and ethical duties of confidentiality though, and try to ‘fictionalise’ and anonymise as much as possible. 
7. There’s no rush. If you come across this months or years from now, or if inspiration strikes slowly, I’m sure this debate will be burbling on.

As you may have surmised, this idea owes something of a debt to the Feminist Judgments Project (see also their book), although in this case we aren’t constrained by that irritant of actually existing statutes and common law because we're inventing new laws, not re-interpreting old ones.

That's the challenge, but if you want more ideas or information about the MCA and the CRPD, read on...

The reach of ‘mental capacity’ in England and Wales and the challenge of the CRPD 

There are a huge range of substituted decision making regimes premised upon incapacity across the world, but it’s important to recognise that they differ enormously. As a preliminary, if you’re not familiar with mental health and mental capacity law in England and Wales its worth bearing in mind that what we call ‘guardianship’ is probably not what you mean by it. The regime called “guardianship” under the MHA is very little used, and provides very limited powers, being a relic of an older regime which was significantly trimmed back in 1983. What is often referred to as ‘guardianship’ in international debates - loss of authority over one’s property and affairs or personal decision making - can take place under range of mechanisms including the ‘general defence’ of s5 MCA, Lasting Power of Attorney or court appointed deputyship. All substituted decisions under the MCA are subject to the functional assessment of capacity. The best source of information on this is the code of practice. For readers in England and Wales, familiar with the MCA, we would naturally interpret the prohibition on substituted decision making and the use of ‘incapacity’ criteria to relate not to decisions around entry into “guardianship”, but the entire gamut of decisions engaged by the MCA. These include: 

• Major personal welfare decisions, like refusal of and consent to medical treatment (including life saving treatment, end-of-life decisions and also non-therapeutic sterilisation), where a person should live, what community care services they should receive (including service refusal), contact with (potentially abusive) friends, partners or family members – disputes over these types of decisions often occupy the Court of Protection’s personal welfare jurisdiction.  These do not necessarily need a deputy or attorney.
• Financial authority – like whether to activate a Lasting Power of Attorney for property and affairs, whether a court appointed deputy should manage a person’s financial and property affairs, whether an appointee should manage their welfare benefits. 
• Day to day personal welfare and financial decisions, like what a person purchases when out shopping, what a person wears, what they eat, taking medication, etc. These do not necessarily need a deputy or attorney.
• Restraint and restrictions on liberty – in England and Wales these are primarily determined by the MCA provisions for restraint (see this blog post and this for case law around this). All forms of restraint, and all restrictions on liberty, under the MCA are structured as a form of substituted decision. It’s worth highlighting that in the MCA code of practice the extent of a ‘duty of care’ which might require restraint to prevent harm to a person is contingent upon their lacking capacity [6.43].  It is also worth highlighting that the MCA is the codification of the common law doctrine of 'necessity' as it relates to people with mental disabilities.
• Litigation capacity – Under the Civil Procedure Rules Practice Direction 21 a ‘protected party’ who lacks the capacity to litigate must have a ‘litigation friend’ to conduct litigation on their behalf. In the Court of Protection Part 17 of the Court of Protection Rules 2007 require that ‘P’ (‘any person... who lacks or, so far as consistent with the context, is alleged to lack capacity to make a decision or decisions in relation to any matter that is the subject of an application to the court’) must also have a litigation friend. 
• Deprivation of liberty – Under the MCA deprivation of liberty safeguards (DoLS) and also under s16 MCA authorisation may be granted to deprive a person of their liberty if they meet the qualifying requirements, which include whether they have capacity to decide where they should be accommodated to be given care or treatment. This sounds awful, except when one reflects that without these provisions people who would not be subject to various procedural safeguards would still have been subject to the same restrictions in practice, but would be treated as if they consented to them unless they clearly objected, as per the Bournewood case (in fact, even if a person did clearly object to being in community institutions, there were no safeguards whatsoever before the DoLS).  To put it another way, a lot of procedural safeguards hinge on whether or not you are said to have capacity to consent to, e.g., confinement with some very restrictive care regime, powerful anti-psychotic treatments, ECT, etc.
• Capacity to consent to sex and marriage – under the MCA 2005, if a person lacks the capacity to consent to sex, marriage or adoption of their children, then a ‘substituted decision’ cannot be taken. Under the Sexual Offences Act 2003, sex with a person who lacks capacity to consent to it is a criminal offence. (See this paper by Peter Bartlett for an interesting discussion of this issue). There have been cases where marriages have been voided on capacity related grounds (e.g. KC v Westminster (2007), SH v NH (2008)). 
• Other areas – The MCA has enormous reach. It is currently being contemplated as the standard for ‘fitness to plead’ in criminal proceedings (i.e. whether a person has the mental capacity to decide how to plead to charges laid against them). The MCA has also been relied upon to annul bankruptcy orders against people who are said to lack capacity (e.g. this case, and this). Under s28 Limitation Act 1980 if a person is ‘under a disability’ then they may bring an action up to 6 years after they have ceased to be under that disability, regardless of the ordinary limitation period of that type of action – and, that disability is now defined as lacking capacity (s38(2) Limitation Act). Under the s44 MCA it is a criminal offence to ill-treat or wilfully neglect “a person who lacks capacity”, although the definition rather unhelpfully seems to take a ‘status’ approach and does not specify what a person must lack capacity to do (e.g. R v Hopkins; R v Priest (2011)). And, of course, capacity comes into testamentary capacity, and there are numerous examples of where a testators capacity has been called into question in relation to a particular will – and not always before they have died (e.g. Gale v Gale (2010); Key v Key (2010); D v R (2010)). 

In short, incapacity changes everything. And consequently it engages a huge range of CRPD rights, including at the very least: 

• Article 12 (Equal recognition before the law) – as I’ve just discussed, some have interpreted this to mean an absolute prohibition of substituted decisions (meaning: decisions which do not reflect the wishes and preferences of the relevant person, where they can be discerned). 
• Article 14 (Liberty and security of person) – requires that ‘if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others’ which would rather scupper the disability related grounds for detention in the MHA and DoLS. 
• Article 18 (Integrity of the person) –interpreted by some to prohibit coerced medical treatments under mental health regimes; could possibly include coercive forms of care outside of the MHA, perhaps including physical restraint and also psychoactive medical treatments administered in community settings under the MCA. 
• Article 19 (The Right to independent Living) – Includes having ‘the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement’, which clearly creates problems for substituted decisions which place somebody in a particular living arrangement against their wishes. Article 19 also, as the Joint Committee on Human Rights has commented in their recent report, calls into question issues around social and welfare rights.  Many best interests decisions are made in the context of some options simply being unsafe or impractical due to a shortage of resources to support a person in their chosen setting.  Article 19 is also interesting inasmuch as it relates to self-determination within a setting. As the G v E case called into question, to what extent is a person enjoying ‘independent living’ if they are: 

‘...currently confined to [to that service] except when he is escorted to school or on visits or activities, and has no space or possession that is private or safe from interference or examination.... [He is] unable to maintain social contacts because of restrictions placed on access to other people, including family members, and a decision has been made by the local authority that he will not be released into the care of others, or permitted to live elsewhere, unless such a move is considered appropriate.’ 

Be cautious - what is often called ‘independent living’ within social care circles in the UK is almost certainly not what is meant by ‘independent living’ in the sense of the CRPD.

But then, there is also Article 16, which requires state parties to ‘all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse’. For many UK based practitioners, familiar with Court of Protection case law and working with the MCA in practice, it may be hard to see how disabled people in certain situations can be safeguarded against exploitation, violence and abuse without the possibility of making substituted decisions. Which nicely brings me onto some suggestions of cases people might want to re-imagine to test out the potential and the challenges of 

Suggested cases 

In case you’re stuck for ideas, here are a few cases that I think could be very interesting if given the CRPD treatment. Don’t feel limited to these, there’s plenty of cases (and, indeed, issues) that I haven’t considered – these are just the cases I happen to know best, and you may well know of interesting cases in other areas. I’ve broken them down into different key areas. 

• Where should a person live? This is an issue that comes up all the time in the Court of Protection case law. The issues take various forms. If you want to consider how and when people should be supported to leave the family home and live on their own, you might want to look at: A PCT v P (2009), Re MP (2009), and/or K v LBX (2012). Another issue is removal from a person’s own home due to risks to their safety there, to be placed in a residential care institution against their wishes. Such situations often involve risks where it is very hard to see how they could be mitigated with additional offers of support, particularly where people (or their families) are resistant to acknowledging the need for or accepting support. A good example includes: Dorset County Council v EH [2009].  But see also A London Local Authority v JH & Anor [2011].
• Restraint. I had assumed from the CRPD literature that there was an absolute prohibition on all forms of restraint, but talking to people more closely associated with it, I’m not so sure that was the intention. It would be helpful to look at cases where restraint has featured to consider how they would handle it in the spirit of the CRPD. For restraint in institutional care, see CWCC v P (2011, First instance), Re C (2011). For restraint by family caregivers, see A Local Authority v A (A Child)& Anor [2010]. Before invoking the 'duty of care' or 'necessity', please see my comments on restraint and the MCA above.
• Supporting capacity – handling influence? Article 12 CRPD advocates greater provision for supported decision making, and emphasises the relationality of capacity. There are cases which reflect relational elements of capacity (e.g. V v R (2011)), although not as many as one might hope. One area where this might be problematic would be where a person’s chosen supporter was considered by others to exercise an inappropriate influence, potentially placing them at quite significant risk of harm, as in A PCT v P (2009). How would these kinds of cases be handled? 
• Supporting capacity – education and learning. There are a growing number of cases where a person has been said to lack capacity, but where the court has directed that with further education or training they could attain capacity. Almost always, these cases involve capacity to consent to sex (e.g. D Borough Council v AB [2011], A Local Authority v H [2012]). We can easily think of other examples where a person could attain capacity to make some kind of decision with access to education and learning (e.g. road safety, financial matters). Until such point as that training has been provided, though, what’s the plan? What if a person doesn't want training or education?  And, if training or education is being provided in order to help support or enable capacity, presumably we have some standard in mind for 'attained capacity' - but what happens if it is not attained?  And as for sex – should there even be a ‘capacity’ threshold, beyond which sex is prohibited (see Allan Norman's interesting take on this)? 
• Litigation capacity. This is a key legal capacity and Article 12 issue – whether or not a person has the right to instruct one’s solicitor to direct proceedings as they determine. One can think of cases like RP v Nottingham (2008), where the decision of a litigation friend to concede care proceedings to remove RP’s child (due to be heard before the European Court of Human Rights as RP v UK) might be critiqued within the framework of the CRPD. But there are other cases, like Dunhill v Burgin (2012), which offer a contrasting perspective and where a hardline no substituted-decisions approach might lead to a hard outcome.
• Deprivation of liberty – If a person does not expressly object to their confinement in a particular setting, should they be treated as consenting to it, and hence not deprived of their liberty? Paradoxically, one might even suggest that a person being deemed ‘incapable’ in such contexts has an effect protective of their right to self determination. How, for example might HL v UK (2004) or MIG & MEG (2010) (now P & Q (2011)) go if the concept of capacity was removed?   If you pick a deprivation of liberty case, then please specify whether any restrictions on liberty are ever necessary, to what ends, with what safeguards, and whether they amount to detention or not.  See also  CWCC v P (2011, First instance) and Re C (2011) for interesting challenges.  For a case with a very obvious need for an injection of CRPD, see C v Blackburn with Darwen (2012) (thanks to Simon Burrows for that suggestion).
• Consent to treatment - This is an issue which comes up under the MCA as well as the MHA.  How might cases like DH NHS Foundation Trust v PS [2010] go under the CRPD?  What about  or W v M (2011), where a person's present wishes and preferences about life-sustaining treatment cannot be determined, and there is no advance directive?  What about cases like Rabone & Anor v Pennine Care NHS Foundation [2012], where a hospital was held to have breached its operational duty under Article 2 to an informal patient by permitting her to leave the hospital when she presented as a suicide risk, and later committed suicide?

Helpful resources

If you'd like to read more about these debates around legal capacity, here are some links to thought provoking reading:

• There are huge debates about this in Ireland at present, as the House of Oireachtas gears up to pass the new Mental Capacity Bill - which looks a lot like the English and Welsh MCA.  You can read their report on the hearings about the Mental Capacity Bill here (unfortunately for technical reasons the full report could not be produced in an accessible format - but the committee kindly sent me an accessible pdf so please email me if you'd like a copy).  The Centre for Disability Law and Policy at NUI Galway have been super-busy producing really interesting responses to the Mental Capacity Bill (here), and in conjunction with Amnesty International they've produced a set of Essential Principles for reform of legal capacity laws (accessible version here).
• There's also interesting work coming out of Canada, you might be interested to read this paper  by Bach and Kerzner prepared for the Law Commission of Ontario.  You'll notice in much of the Article 12 literature there's a lot of interest in the Representation Agreement Act (British Columbia) 1996, and handily there's a lovely interview about the BC experience in this edition of The Scrivener (pp12-20; HT to Robert Gordon for that mention).  I spent the bank holiday weekend reading about the RAA, and it's potential is really very exciting.
• The drafting of Article 12 (and other articles of the CRPD) was very contentious, and there's a great paper on this by Amita Dhanda (DHANDA, A. (2006-7) 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future'. Syracuse Journal of International Law and Commerce, 34, 429.) Frustratingly it's paywalled (and the site hosting the journal haven't done a great job of producing an accessible version of it...), but if you want to read more about about the debates during the drafting of the CRPD the UN hosts the negotiation archives online.  There's another nice piece by Dhanda here which is open access.
• You can also read the reports and activities of the CRPD committee online.  Already reports on Tunisia and other states suggest the CRPD committee has come down against permitting substitute decision making mechanisms.
• And you can read the UK's government's report on its compliance with the CRPD here; to what extent that report is engaged either with reality or the CRPD I'll leave to you to decide.
• The Center for the Human Rights of Users and Survivors of Psychiatry hosts a lot of interesting material on Article 12, as does Inclusion Europe, and the International Disability Alliance.
• There are a growing number of articles which consider the relationship of the MCA, and also the European Convention on Human Rights to the mental capacity and mental disability provisions of the CRPD.  Unfortunately, they're all behind a paywall of some kind, but if you have access  you might be interested in reading:

BARTLETT, P. (2009) 'The United Nations Convention on the Rights of Persons with Disabilities and the future of mental health law'. Psychiatry, 8(12), 496-498.
BARTLETT, P. (2012) 'The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law' Medical Law Review (forthcoming)
FENNELL, P. & KHALIQ, U. (2011) 'Conflicting or complementary obligations? The UN Disability Rights Convention on Human Rights and English law'. European Human Rights Law Review, (6), 662-674.
LEWIS, O. (2011) 'Advancing legal capacity jurisprudence'. European Human Rights Law Review, (6), 700-714.
LUSH, D. (2011) 'Article 12 of the United Nations Convention on the Rights of Persons with Disabilies'. Elder Law Journal, 1(1), 61.
WELLER, P. (2011) 'Convention on the Rights of Persons with Disabilities and the Social Model of Health: New Perspectives'. Journal of Mental Health Law, (Special Edition), 74.

If you want to highlight any other important resources or articles I've neglected to mention, drop me a line!